Friday, 11 May 2018

Aadhaar Lacks Regulatory Oversight: Supreme Court

After a marathon hearing lasting 38 days, the Supreme Court expressed concern over the lack of regulatory oversight in the Aadhaar superstructure and reserved judgement on the legality of the all-pervasive, mandatory nature of the unique identity scheme for residents of India.

A five-judge bench led by Chief Justice of India Dipak Misra was hearing a bunch of petitions against the ‘Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.’

“What Aadhaar lacks is a hierarchy of regulators. The law seems to have many parameters, norms and offences but no intervening regulatory mechanisms,” Justice DY Chandrachud observed on Thursday, the concluding day of arguments.

The hearing was the longest running after the Kesavananda Bharti case, which culminated in the court barring successive governments from changing the basic structure of the Constitution through amendments.

Chandrachud was responding to arguments by senior advocate Gopal Subramanium that the Aadhaar scheme left residents at the mercy of the government. Although data leaks are punishable under the Act, only the Unique Identification Authority of India (UIDAI), which administers the identity programme, could file a complaint regarding this.

There is no mechanism to appeal against UIDAI’s decisions and the complaint mechanism against the authority was equally tenuous.

Subramanium argued that the benefits, subsidies and services for which Aadhaar was mandatory were mostly in the nature of entitlements or rights of the people rather than largesse.

Even if they were to be largesse in the strict sense — something the state grants by way of charity — the state cannot insist on stripping a person of his dignity, an essential part of his constitutional identity, as a pre-condition to granting such largesse, he contended. “The benefit, if any, must manifest in a way that dignity is not taken away,” he said.

Subramanium urged the court to strike down Section 7 of the Act on the grounds that the people’s right to say no is taken away.